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HomeMy WebLinkAboutItem 4.03 Amend Muni Code Electronic Cigarettesor 19 82 /ii � 111 DATE: TO: FROM: SUBJECT STAFF REPORT CITY COUNCIL July 15, 2014 Honorable Mayor and City Councilmembers CITY CLERK File #560 -90 Christopher L. Foss, City Manager " Adoption of Ordinance Adding Regulations on Electronic Cigarettes to the Dublin Municipal Code Prepared by. Roger Bradley, Assistant to the City Manager EXECUTIVE SUMMARY: The City Council will consider amending certain sections of the Dublin Municipal Code to clarify that electronic smoking devices, which are commonly referred to as e- cigarettes, and their vaporous byproducts are prohibited, controlled, and /or regulated in the same manner as tobacco products and smoking pollution. FINANCIAL IMPACT: None. RECOMMENDATION: Staff recommends that the City Council waive the reading and adopt an Ordinance Amending Chapter 4.40 (Tobacco Retailers), Chapter 5.56 (Smoking Pollution Control), Chapter 8.08 (Definitions), and Chapter 8.43 (Tobacco Retailers) of the Dublin Municipal Code. F _ . Submitted By- Assistant to the City Manager DESCRIPTION: '\ Reviewed By Assistant City Manager At the June 17, 2014 City Council meeting, the City Council received a report from Staff (Attachment 1) and introduced an ordinance amending Chapter 4.40 (Tobacco Retailers), Chapter 5.56 (Smoking Pollution Control), Chapter 8.08 (Definitions), and Chapter 8.43 (Tobacco Retailers) of the Dublin Municipal Code. The attached ordinance (Attachment 2) ensures that electronic smoking devices, commonly called e- cigarettes, are prohibited, regulated, and controlled by the City in the same manner as tobacco products. NOTICING REQUIREMENTS /PUBLIC OUTREACH: None. Page 1 of 2 ITEM NO. 4.3 ATTACHMENTS: 1. Staff Report — June 17, 2014. 2. Ordinance Amending Chapter 4.40 (Tobacco Retailers), Chapter 5.56 (Smoking Pollution Control), Chapter 8.08 (Definitions), and Chapter 8.43 (Tobacco Retailers) of the Dublin Municipal Code Page 2 of 2 or 19 82 /ii � 111 DATE: TO: FROM: SUBJECT STAFF REPORT CITY COUNCIL June 17, 2014 Honorable Mayor and City Councilmembers CITY CLERK File #560 -90 Christopher L. Foss, City Manager " PUBLIC HEARING: Ordinance Adding Regulations on Electronic Cigarettes to the Dublin Municipal Code Prepared by. Roger Bradley, Assistant to the City Manager EXECUTIVE SUMMARY: The City Council will consider amending certain sections of the Dublin Municipal Code to clarify that electronic smoking devices, which are commonly referred to as e- cigarettes, and their vaporous byproducts are prohibited, controlled, and /or regulated in the same manner as tobacco products and smoking pollution. FINANCIAL IMPACT: None. RECOMMENDATION: Staff recommends that the City Council conduct the public hearing, deliberate, and waive the reading and INTRODUCE an Ordinance amending Chapter 4.40 (Tobacco Retailers), Chapter 5.56 (Smoking Pollution Control), Chapter 8.08 (Definitions), Chapter 8.43 (Tobacco Retailers) of the Dublin Municipal Code. Submitted By-' Assistant to the City Manager DESCRIPTION: "'� Reviewed By Assistant City Manager At the City Council meeting on April 1, 2014, Staff presented a report to the City Council which highlighted a need for clarity between the various tobacco control ordinances as it relates to electronic smoking devices (Attachment 1). At that meeting, Staff was directed to prepare an ordinance amending certain sections within the Dublin Municipal Code (DMC), in particular the Smoking Pollution Control, Tobacco Retailer, and Zoning sections of the DMC, to ensure that electronic smoking devices, commonly called e- cigarettes, are prohibited, regulated, and controlled by the City in the same manner as tobacco products. In response, Staff has prepared Page 1 of 3 ITEM NO. 6.3 an ordinance (Attachment 2) for the City Council's consideration, which amends the definitions contained within the aforementioned sections, by inserting a definition for electronic smoking device and then clarifying that smoking includes the use of said device, defining a tobacco product to include any and all electronic smoking devices, and declaring that tobacco paraphernalia includes accompanying products for electronic smoking devices, such as cartridges, etc. PROPOSED ORDINACE CHANGES: The sections below highlight the proposed ordinance changes and provide an overview of the expected impact. Chapter 4.40 — Tobacco Retailers Section Background: Section 4.40 of the DMC requires that all tobacco retailers acquire and maintain a license from the City in order to sell tobacco products within the City's jurisdictional boundaries. Electronic smoking devices that contain nicotine are regulated in the same manner as tobacco products. However, devices that do not contain nicotine are not covered under this ordinance. If retailers are caught selling nicotine based products to minors, fines or revocation of the license to sell such products may result. Ordinance Impact. Adoption of the proposed ordinance would prohibit businesses from selling non - nicotine based electronic smoking devices to minors. Chapter 5.56 — Smoking Pollution Control Section Background: This section of the Code regulates and prohibits smoking at various indoor and outdoor locations throughout the City such as at parks, apartment housing complexes, City events, places of employment, dining areas, and locations where people are waiting for a service (e.g., an ATM). It also declares secondhand smoke a nuisance and allows a private resident to take legal action to abate such nuisance. Additionally, this chapter prohibits hookah lounges and requires smokers to maintain a reasonable distance away from entrances, exits, windows, and vents at locations where smoking is prohibited. Ordinance Impact: Adoption of the proposed ordinance would ensure that the vapors from electronic smoking devices are treated the same as secondhand smoke. It would prohibit vaping in public places including, but not limited to, parks, community events, places of employment, and smoke -free apartment housing units. The ordinance proposal would also prohibit the opening of a vapor lounge within the City of Dublin, which is a business establishment solely focused on using electronic smoking devices. Finally, in areas where secondhand vapor was a continual problem, residents would be able to seek for an injunction or other legal remedy to abate the nuisance. Chapters 8.08 & 8.43 — Zoning Ordinance Section Background: Certain sections of the Zoning Ordinance regulate the addition of new Tobacco Retailers within the community by ensuring that new retailers are a certain number of feet away from areas frequented by youth, such as schools and parks, as well as a required distance away from other retail tobacco shops. Page 2 of 3 Ordinance Impact: Adoption of the proposed ordinance would ensure that a retailer, which solely sells electronic smoking devices, maintains a required distance away from areas frequented by youth, such as schools and parks, as well as a required distance away from other retail tobacco shops. NOTICING REQUIREMENTS /PUBLIC OUTREACH: A notice was placed in the Tri- Valley Times on June 7, 2014 notifying the community of the City Council's consideration of the proposed ordinance. ATTACHMENTS: 1. Staff Report - April 1, 2014. 2. Ordinance amending the Dublin Municipal Code Chapter 4.40 (Tobacco Retailers), Chapter 5.56 (Smoking Pollution Control), Chapter 8.08 (Definitions), Chapter 8.43 (Tobacco Retailers) of the Dublin Municipal Code clarifying that electronic smoking devices are prohibited, regulated, and controlled by the City of Dublin in the same manner as tobacco products. Page 3 of 3 or 19 82 /ii � 111 DATE: TO: FROM: SUBJECT STAFF REPORT CITY COUNCIL April 1, 2014 Honorable Mayor and City Councilmembers CITY CLERK File #560 -90 Christopher L. Foss, Acting City Manager " ,_ Consideration of Adding Prohibitions on Electronic Cigarettes to the Dublin Municipal Code Prepared by Roger Bradley, Assistant to the City Manager EXECUTIVE SUMMARY: The City Council will consider amending certain section of the Dublin Municipal Code to clarify that electronic cigarettes and its vaporous byproducts are prohibited, controlled, and /or regulated in the same manner as tobacco products and smoking pollution. FINANCIAL IMPACT: If the City Council chooses to amend the Dublin Municipal Code for electronic cigarettes, there will be expenses incurred by the City Attorney's Office. RECOMMENDATION: Staff recommends that the City Council direct Staff, by motion, to prepare a municipal code amendment clarifying in all relevant sections of the Code where tobacco and smoking regulations are mentioned to ensure electronic cigarettes are included within these Municipal Code sections. F Submitted By- Assistant to the City Manager DESCRIPTION: -�� Reviewed By Acting Assistant City Manager At the City Council meeting on February 18, 2014, Vice Mayor Biddle requested that Staff look at the City's Smoking Pollution Control and Tobacco Retailer sections of the Dublin Municipal Code (DMC) to determine whether electronic cigarettes (E- cigarettes) are prohibited, regulated, and controlled by the City in the same manner as tobacco products. Staff has reviewed the Dublin Municipal Code and found that there are a few areas within the various ordinances whereby greater consistency between the different sections and clarity would be helpful in administration and enforcement of the law in reference to E- cigarettes. The City's Tobacco Retailers Ordinance is the most clear in its inclusion of E- cigarettes. The other Page 1 of 2 ITEM NO. 8.2 sections of the DMC are less clear on the inclusion of E- cigarettes, and Staff would recommend amending the language throughout all sections of the Code to explicitly state that E- cigarettes are prohibited, controlled, and regulated in the same manner as tobacco products, tobacco retailers, and smoking pollution. Impact of Including E- cigarettes in Various Sections of the Ordinance Chapter 4.40 — Tobacco Retailers Section 4.40 of the DMC requires that all tobacco retailers acquire a license from the City in order to sell tobacco products within its jurisdictional boundaries. This section's definition of a tobacco product includes electronic cigarettes, and any other product that is or will be made, as long as the product contains nicotine. However, Staff understands that there are some E- cigarette products that do not contain nicotine. While a business could sell E- cigarette products as long as they do not contain nicotine, Staff believes that this would generally be unlikely as selling the full range of products would be the most profitable and generally such businesses would mostly likely also sell regular tobacco products. However, minors would be able to purchase E- cigarettes from such retailers, as long as they do not contain nicotine, without penalty under the City ordinance. E- cigarettes are construed to be gateway products leading to nicotine or even tobacco usage later in life, so controlling them to protect youth would make sense. Clearly stating that E- cigarettes are covered under all sections of this chapter of the DMC would remove this and serve to protect the community's youth. Chapter 5.56 — Smoking Pollution Control This section of the Code regulates and prohibits smoking at various indoor and outdoor locations throughout the City such as at parks, apartment housing complexes, City events, places of employment, dining areas, and locations where people are waiting for a service (e.g., an ATM). Additionally, this chapter prohibits hookah lounges and requires smokers to maintain a reasonable distance away from entrance, exits, windows, and vents from locations where smoking is prohibited. Further, Staff has been approached from time to time by prospective business owners about vapor lounges, which are business establishments where patrons would go to consume E- cigarette vapor. This chapter of the DMC also declares secondhand smoke a nuisance, and empowers a resident to take legal action to abate this nuisance. Being clear that E- cigarettes are covered within this section would prohibit their vaporous byproducts from encroaching on the privacy of other individuals; and, as it does with hookah lounges, would ensure that vapor lounges are prohibited. Chapters 8.08 & 8.43 — Zoning Ordinance Certain sections of the Zoning Ordinance regulate the addition of new Tobacco Retailers within the community by ensuring that new retailers are a certain amount of feet away from areas frequented by youth, such as schools and parks, as well as a required distance away from retail tobacco shops. This section does not prohibit, regulate, or control a retailer that solely sells E- cigarettes. However, such a store would be required to obtain a Tobacco Retailer License in order to sell such products if they contain nicotine, which it is likely that a majority of their products would. Staff would recommend amending this section to ensure consistency with other portions of the Code and to ensure that a business that seeks to solely sell tobacco products maintains the desired distance away from areas frequented by youth. NOTICING REQUIREMENTS /PUBLIC OUTREACH: None. ATTACHMENTS: None. Page 2 of 2 ORDINANCE NO. — 14 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN AMENDING CHAPTER 4.40.020 OF THE DUBLIN MUNICIPAL CODE RELATING TO TOBACCO RETAILER LICENSING, AMENDING CHAPTER 5.56.040 OF THE DUBLIN MUNICIPAL CODE RELATING TO SMOKING POLLUTION CONTROL, AMENDING CHAPTER 8.08.020 OF THE ZONING ORDINANCE, AND AMENDING CHAPTER 8.43.030 OF THE DUBLIN MUNICIPAL CODE REGULATING THE LOCATION OF TOBACCO RETAILERS WITHIN THE CITY OF DUBLIN WHEREAS, the Dublin Municipal Code (the "Code ") regulates the sale of tobacco products and tobacco paraphernalia within the City of Dublin; and WHEREAS, the Code, as codified prior to the adoption of this ordinance, regulates the sale and distribution of electronic cigarettes as a either a Tobacco Product or as Tobacco Paraphernalia; and WHEREAS, specifically listing the inclusion of electronic cigarettes within the Code as either a Tobacco Product or as Tobacco Paraphernalia would assist residents and businesses in understanding the restrictions regarding electronic cigarettes; and WHEREAS, it is the intent of the City Council, in enacting this ordinance, to ensure compliance with the business standards and practices of the City and to encourage responsible retailing of electronic cigarettes and to discourage violations of related laws, especially those which prohibit or discourage the sale or distribution of nicotine products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein. NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows- Section 1. Section 4.40.020 of the Dublin Municipal Code is hereby amended to read as follows (with additions in italics and deletions in strikethro uivh): "Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction. "Chief of Police" means the Chief of the Dublin Police Department or his or her designee. 1 "Electronic smoking device" or "e- cigarette" means an electronic and /or battery - operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine and /or other substances. "Electronic smoking device" includes any similar device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vapor cigarette, or any other product name or descriptor. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10 %) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day -to -day operations of a business. "Self- service display" means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person -to- person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self - service display. "Smoking" means 1) possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind) or 2) the use of an electronic smoking device. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, electronic smoking device cartridges, electronic smoking device liquids, and any other item designed for the smoking, preparation, storing, consumption, or use of tobacco products or electronic smoking devices. "Tobacco Product" means any substance containing tobacco leafor is derived from tobacco, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; any and all electronic smoking devices; and any product containing synthetically produced nicotine. or formulation of matter Gentain;ng hiGlOgiGally tive arneunts of niGGtine that is rnanufaGtUred, sold, offered fer sale, or othepNose distributed with the expeGtatien that the predUGt or matter will be intredUGed onto the hurnan body, but-"Tobacco Product' does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. 2 "Tobacco retailer' means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products or tobacco paraphernalia. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. Section 2. Section 5.56.040 of the Dublin Municipal Code is hereby amended to read as follows (with additions in italics and deletions in strikethre gh): The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: "Bar" means an area that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the service of food is incidental to the consumption of beverages and in which persons younger than twenty -one (21) years of age are at all times excluded. "Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit- making purposes, including private residences that are licensed to provide child care, adult care, and other health care related services, retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered. "City- sponsored event" means an event which the City of Dublin plans, administers, coordinates, and finances, and which is held upon property owned by the City of Dublin. "Dining area" means any area containing a counter or table upon which meals are served or any area designed, established, or regularly used for consuming meals. "Electronic smoking device" or "e- cigarette" means an electronic and /or battery - operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine and /or other substances. "Electronic smoking device" includes any similar device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vapor cigarette, or any other product name or descriptor. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease. "Employee" means any person who is employed by any employer or hired as an independent contractor in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity. "Employer' means any person, partnership, corporation or nonprofit entity, including a municipal corporation, who employs the services of one (1) or more persons. 3 "Enclosed" means closed in by a roof and four (4) walls with appropriate openings for ingress and egress. "Landlord" means any person who owns real property leased as residential property, any person who lets residential property, or any person who manages such property, except that "landlord" does not include sublessors. "Multi -unit residence" means a premises that contains sixteen (16) or more units for rent. "Multi -unit residence common area" means any outdoor area of a multi -unit residence accessible to and usable by residents of different units, including but not limited to play areas, common cooking and eating areas, swimming pools, common courtyards, paths and walkways, and parking areas. "Nonprofit entity" means any corporation, unincorporated association or other entity created for charitable, educational, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objects or purposes of the organization and not to private financial gain. A public agency is not a nonprofit entity within the meaning of this section. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Place of employment" means any area under the control of a public or private employer that employees may have cause to enter during the normal course of employment, including, but not limited to, work areas, vehicles, employee lounges and restrooms, conference rooms and classrooms, cafeterias and hallways, except that a private residence is not a place of employment unless it is used as a child care or a health care facility. "Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage, and includes legally separate but contiguous pieces of land that are owned by the same person or by multiple persons owning and operating the land under common control. "Public place" means any area in which the public is invited or in which the public is permitted, including, but not limited to: banks, educational facilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail stores, theaters and waiting rooms. "Reasonable distance" means a distance that ensures that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area. Except as otherwise provided in this chapter, this distance shall be a minimum of twenty (20) feet unless the application of the twenty (20) foot minimum would place the smoker in a potentially unsafe location, in which case a "reasonable distance" shall be a location closer than twenty (20) feet which does not place the smoker in a potentially unsafe location. 4 "Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria, and any other eating establishment, organization, club, boardinghouse or guest house, which gives or offers food for sale to the public, guests, patrons, members or employees. "Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories. "Secondhand smoke" means the tobacco smoke created by burning or carrying any lighted pipe, cigar, or cigarette of any kind, and the smoke exhaled by an individual who engages in smoking. "Self- service display" means the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. "Single- family residence" means and includes a detached single - family dwelling designed or intended for occupancy by one person or by one family. "Smoking" means: the noncumption of tebaGGe by inhaling, exhaling, burning or narniiniv any lightei. pope, — .{gazette of any hind. 1) possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind) or 2) the use of an electronic smoking device. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, electronic smoking device cartridges, electronic smoking device liquids, and any other item designed for the smoking or ingestion of tobacco products or electronic smoking devices. "Tobacco Product" means any substance containing tobacco leafor is derived from tobacco, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; any and all electronic smoking devices; and any product containing synthetically produced nicotine. "Tobacco Product' does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. "Tobacco retailer' means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products, or tobacco paraphernalia. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. "Unit" means: (1) a dwelling space consisting of complete independent living facilities for one or more persons, including, for example, permanent provisions for living and 5 sleeping, and any private outdoor spaces like balconies and patios; and (2) senior citizen housing and single room occupancy hotels, as defined in California Health and Safety Code Section 50519(b)(1), even where lacking private cooking facilities or private plumbing facilities. "Unit" does not include lodging in a hotel or motel that meets the requirements set forth in California Civil Code Section 1940(b)(2). "Vending machine" means any electronic or mechanical device or appliance the operation of which depends upon insertion of money, whether in coin or in paper bill, or other thing representative of value, which dispenses or releases tobacco products and /or tobacco accessories. Section 3. Section F of Chapter 5.56.050 of the Dublin Municipal Code is hereby added to read as follows: F. Notwithstanding any other provision of this Chapter, it shall be a violation of this Chapter to use an electronic smoking device in any place within the City of Dublin where smoking is prohibited by law. Section 4. The definition of "Tobacco Retailer" in Section 8.08.020 of the Dublin Municipal Code is hereby amended to read as follows (with additions in italics and deletions in strikethro uivh): Tobacco Retailer. The term Tobacco Retailer shall mean any person or business that sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco, tobacco products and /or tobacco paraphernalia as those terms are defined in Chapter 8.43 of the Dublin Municipal Code, and includes, but is not limited to a Retail Tobacco Shop. Section 5. Section 8.43.030 of the Dublin Municipal Code is hereby amended to read as follows (with additions in italics and deletions in strikethro uivh): The terms used in this Chapter have the meaning set forth below: "Department" means the Community Development Department. "Electronic smoking device" or "e- cigarette" means an electronic and /or battery - operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine and /or other substances. "Electronic smoking device" includes any similar device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vapor cigarette, or any other product name or descriptor. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Retail Tobacco Shop" means a business establishment, the main purpose of which is the sale of tobacco, tobacco products, or tobacco paraphernalia. "Smoking" means 1) possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind) or 2) the use of an electronic smoking device. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, electronic cigarette cartridges, electronic cigarette liquids, and any other items designed for the smoking or ingest;^^ ^f tebaG,.^ ^red GtS preparation, storing, consumption, or use of tobacco products or electronic smoking devices. tobaGGE). "Tobacco Product' means any substance that contains tobacco or is derived from tobacco, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco, any and all electronic smoking devices, and any product containing synthetically produced nicotine. "Tobacco Product' does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. "Tobacco Retailer" shall have the meaning ascribed to it in Chapter 8.08 of the Dublin Municipal Code. "Tobacco Retailing" shall mean engaging in the activities of a Tobacco Retailer. Section 6. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The City Council of the City of Dublin hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. Section 7. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 8. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. 7 PASSED, APPROVED AND ADOPTED this 17th day of June, 2014. AYES- NOES- ABSENT- ABSTAIN- Tim Sbranti, Mayor ATTEST: Caroline Soto, City Clerk 2280584.1 R ORDINANCE NO. — 14 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN AMENDING CHAPTER 4.40.020 OF THE DUBLIN MUNICIPAL CODE RELATING TO TOBACCO RETAILER LICENSING, AMENDING CHAPTER 5.56.040 OF THE DUBLIN MUNICIPAL CODE RELATING TO SMOKING POLLUTION CONTROL, AMENDING CHAPTER 8.08.020 OF THE ZONING ORDINANCE, AND AMENDING CHAPTER 8.43.030 OF THE DUBLIN MUNICIPAL CODE REGULATING THE LOCATION OF TOBACCO RETAILERS WITHIN THE CITY OF DUBLIN WHEREAS, the Dublin Municipal Code (the "Code ") regulates the sale of tobacco products and tobacco paraphernalia within the City of Dublin; and WHEREAS, the Code, as codified prior to the adoption of this ordinance, regulates the sale and distribution of electronic cigarettes as a either a Tobacco Product or as Tobacco Paraphernalia; and WHEREAS, specifically listing the inclusion of electronic cigarettes within the Code as either a Tobacco Product or as Tobacco Paraphernalia would assist residents and businesses in understanding the restrictions regarding electronic cigarettes; and WHEREAS, it is the intent of the City Council, in enacting this ordinance, to ensure compliance with the business standards and practices of the City and to encourage responsible retailing of electronic cigarettes and to discourage violations of related laws, especially those which prohibit or discourage the sale or distribution of nicotine products to minors, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein. NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows- Section 1. Section 4.40.020 of the Dublin Municipal Code is hereby amended to read as follows: "Arm's length transaction" means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm's length transaction. "Chief of Police" means the Chief of the Dublin Police Department or his or her designee. 1 "Electronic smoking device" or "e- cigarette" means an electronic and /or battery - operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine and /or other substances. "Electronic smoking device" includes any similar device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vapor cigarette, or any other product name or descriptor. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Proprietor" means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10 %) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day -to -day operations of a business. "Self- service display" means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person -to- person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self - service display. "Smoking" means: 1) possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind) or 2) the use of an electronic smoking device. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, electronic smoking device cartridges, electronic smoking device liquids, and any other item designed for the smoking, preparation, storing, consumption, or use of tobacco products or electronic smoking devices. "Tobacco Product" means any substance containing tobacco leafor is derived from tobacco, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; any and all electronic smoking devices; and any product containing synthetically produced nicotine. "Tobacco Product" does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. "Tobacco retailer' means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products or tobacco paraphernalia. "Tobacco retailing" shall mean the doing of any of these things. This 2 definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. Section 2. Section 5.56.040 of the Dublin Municipal Code is hereby amended to read as follows: The following words and phrases, whenever used in this chapter, shall be construed as defined in this section: "Bar" means an area that is devoted to the serving of alcoholic beverages for consumption by guests on the premises and in which the service of food is incidental to the consumption of beverages and in which persons younger than twenty -one (21) years of age are at all times excluded. "Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit- making purposes, including private residences that are licensed to provide child care, adult care, and other health care related services, retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered. "City- sponsored event" means an event which the City of Dublin plans, administers, coordinates, and finances, and which is held upon property owned by the City of Dublin. "Dining area" means any area containing a counter or table upon which meals are served or any area designed, established, or regularly used for consuming meals. "Electronic smoking device" or "e- cigarette" means an electronic and /or battery - operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine and /or other substances. "Electronic smoking device" includes any similar device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vapor cigarette, or any other product name or descriptor. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease. "Employee" means any person who is employed by any employer or hired as an independent contractor in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity. "Employer' means any person, partnership, corporation or nonprofit entity, including a municipal corporation, who employs the services of one (1) or more persons. "Enclosed" means closed in by a roof and four (4) walls with appropriate openings for ingress and egress. 3 "Landlord" means any person who owns real property leased as residential property, any person who lets residential property, or any person who manages such property, except that "landlord" does not include sublessors. "Multi -unit residence" means a premises that contains sixteen (16) or more units for rent. "Multi -unit residence common area" means any outdoor area of a multi -unit residence accessible to and usable by residents of different units, including but not limited to play areas, common cooking and eating areas, swimming pools, common courtyards, paths and walkways, and parking areas. "Nonprofit entity" means any corporation, unincorporated association or other entity created for charitable, educational, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objects or purposes of the organization and not to private financial gain. A public agency is not a nonprofit entity within the meaning of this section. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Place of employment" means any area under the control of a public or private employer that employees may have cause to enter during the normal course of employment, including, but not limited to, work areas, vehicles, employee lounges and restrooms, conference rooms and classrooms, cafeterias and hallways, except that a private residence is not a place of employment unless it is used as a child care or a health care facility. "Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage, and includes legally separate but contiguous pieces of land that are owned by the same person or by multiple persons owning and operating the land under common control. "Public place" means any area in which the public is invited or in which the public is permitted, including, but not limited to: banks, educational facilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail stores, theaters and waiting rooms. "Reasonable distance" means a distance that ensures that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area. Except as otherwise provided in this chapter, this distance shall be a minimum of twenty (20) feet unless the application of the twenty (20) foot minimum would place the smoker in a potentially unsafe location, in which case a "reasonable distance" shall be a location closer than twenty (20) feet which does not place the smoker in a potentially unsafe location. "Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria, and any other eating establishment, organization, 4 club, boardinghouse or guest house, which gives or offers food for sale to the public, guests, patrons, members or employees. "Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories. "Secondhand smoke" means the tobacco smoke created by burning or carrying any lighted pipe, cigar, or cigarette of any kind, and the smoke exhaled by an individual who engages in smoking. "Self- service display" means the open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. "Single- family residence" means and includes a detached single - family dwelling designed or intended for occupancy by one person or by one family. "Smoking" means: 1) possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind) or 2) the use of an electronic smoking device. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, electronic smoking device cartridges, electronic smoking device liquids, and any other item designed for the smoking or ingestion of tobacco products or electronic smoking devices. "Tobacco Product" means any substance containing tobacco or is derived from tobacco, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; any and all electronic smoking devices; and any product containing synthetically produced nicotine. "Tobacco Product" does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. "Tobacco retailer' means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products, or tobacco paraphernalia. "Tobacco retailing" shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. "Unit" means: (1) a dwelling space consisting of complete independent living facilities for one or more persons, including, for example, permanent provisions for living and sleeping, and any private outdoor spaces like balconies and patios; and (2) senior citizen housing and single room occupancy hotels, as defined in California Health and Safety Code Section 50519(b)(1), even where lacking private cooking facilities or 5 private plumbing facilities. "Unit" does not include lodging in a hotel or motel that meets the requirements set forth in California Civil Code Section 1940(b)(2). "Vending machine" means any electronic or mechanical device or appliance the operation of which depends upon insertion of money, whether in coin or in paper bill, or other thing representative of value, which dispenses or releases tobacco products and /or tobacco accessories. Section 3. Section F of Chapter 5.56.050 of the Dublin Municipal Code is hereby added to read as follows: F. Notwithstanding any other provision of this Chapter, it shall be a violation of this Chapter to use an electronic smoking device in any place within the City of Dublin where smoking is prohibited by law. Section 4. The definition of "Tobacco Retailer" in Section 8.08.020 of the Dublin Municipal Code is hereby amended to read as follows: Tobacco Retailer. The term Tobacco Retailer shall mean any person or business that sells, offers for sale, exchanges or offers to exchange for any form of consideration, tobacco, tobacco products and /or tobacco paraphernalia as those terms are defined in Chapter 8.43 of the Dublin Municipal Code, and includes, but is not limited to a Retail Tobacco Shop. Section 5. Section 8.43.030 of the Dublin Municipal Code is hereby amended to read as follows: The terms used in this Chapter have the meaning set forth below: "Department" means the Community Development Department. "Electronic smoking device" or "e- cigarette" means an electronic and /or battery - operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine and /or other substances. "Electronic smoking device" includes any similar device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vapor cigarette, or any other product name or descriptor. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Retail Tobacco Shop" means a business establishment, the main purpose of which is the sale of tobacco, tobacco products, or tobacco paraphernalia. 9 "Smoking" means: 1) possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind) or 2) the use of an electronic smoking device. "Tobacco Paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, electronic cigarette cartridges, electronic cigarette liquids, and any other items designed for the preparation, storing, consumption, or use of tobacco products or electronic smoking devices. "Tobacco Product" means any substance that contains tobacco or is derived from tobacco, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; any and all electronic smoking devices; and any product containing synthetically produced nicotine. "Tobacco Product" does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. "Tobacco Retailer" shall have the meaning ascribed to it in Chapter 8.08 of the Dublin Municipal Code. "Tobacco Retailing" shall mean engaging in the activities of a Tobacco Retailer. Section 6. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The City Council of the City of Dublin hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. Section 7. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days following its adoption. Section 8. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED, APPROVED AND ADOPTED this 17th day of June, 2014. AYES- 7 NOES- ABSENT- ABSTAIN- Tim Sbranti, Mayor ATTEST: Caroline Soto, City Clerk